A balance of power as essential as the delicacy existing between an independent judiciary and an apolitical one is a critical pillar of a good functioning liberal democracy, and of the social contract of the same. However, in recent years, a growing number of high-profile legal cases have raised questions regarding the a-politicisation of this power in several Western countries. Although each country’s legal system has their own characteristics, they all nevertheless occur within democracies in which politics is intended not to encroach on the judiciary and vice-versa—a main tenet of the separation of powers. 

So, what is it really? Has judicial activism reached its limits, with judges unduly taking politics into their own hands, or is it more nuanced? Let us take a closer look by focusing on a few emblematic cases which have raised questions on substance, rather than simply form.

Marine Le Pen affair

Returning to the case of accusation of embezzlement of European funds

In one of the most recent and still-ongoing high-profile litigations, this case has concerned the accusations of embezzlement of public money by France’s Marine Le Pen and 24 other of her party members. In total, nearly 7 million euros in EU funds have been allegedly embezzled by the accused to the detriment of the European Parliament between 2004 and 2016. If true, these would have been received in particular to finance fictitious jobs for EU parliamentary assistants.

Requisitions to meet Marine Le Pen and what this implies

Irrespective of the guilt or innocence of anyone in the case—for which this article’s purpose is by no means to determine it—such cases have arguably had certain anomalies and indisputable political implications which have raised the public’s eyebrows, as we will see.

On the line for Marine Le Pen stands a five-year politician-ineligibility sentence, including five years in prison— two of which are unconditional—and a fine of 300,000 euros. However, it should be remembered that for similar facts, for example, a lesser sentence of 30 months suspended prison sentence, three years suspended ineligibility and 7,000 euros was requested by the prosecution against François Bayrou, president of the MoDem—though it should be noted that the sums of money involved were smaller. Thus, in the case concerning Marine Le Pen, what has raised questions is not only the more severe-than-usual indictment, but likewise the unprecedented, and undoubtedly the more problematic, judgement’s provisional execution—that is to say, the immediate application of her ineligibility to hold public office until proven innocent. Effectively, if Marine Le Pen appealed and was exonerated, she could under no circumstances be a candidate in 2027 if the appeal verdict comes after the next elections.

Magistrates sometimes openly hostile to the RN

Finally, what raises questions in a case of this type are the statements of the prosecutor in charge who, according to several sources, admitted to lacking evidence for the meaning of the conviction, but that pronouncing the acquittal of the accused would be too much. It is difficult not to see a possible link between these declarations, more severe requisitions than normal, and the not-so-hidden political positions of the French judiciary leaning quite far to the left.

In a system where the judiciary is to be apolitical, one of the magistrates’ unions Syndicat de la magistrature (left wing), for example, although in the minority in comparison for example with the Union syndicale des magistrats (pluralist and apolitical), does not hide its political positions, which are anchored on the left and hostile to the National Rally. The union in question stood out in particular by publishing a press release affirming their opposition to the fact that “extreme right parties have collected nearly 40% of the votes cast in the European elections”.

In another emblematic affair, we can recall the event known as the “wall of idiots”: a display, in the judges’ union premises, of photos of various public figures including politicians, intellectuals, and journalists, mainly from the right, as well as senior magistrates considered to be right-wing and police officers. Among the displayed were photos of various victims’ relatives. As a result, the former president of the Syndicat de la magistrature, Françoise Martres, was sentenced to a suspended fine of 500 euros, 5,000 euros in damages and 10,000 euros in legal costs for public insult following the posting of Philippe Schmitt, father of a young girl killed in 2007 in the Paris region by a repeat offender. The victim had notably made several statements to the press demanding greater severity from the justice system in France.

Undeniably, such facts raise doubt insofar as the upholding of a free and fair judicial and democratic process is the case, not least because the magistrate is to have a position which is a priori not supposed to be political.

The François Fillon affair in 2017

The case concerning François Fillon, LR centre-right candidate (Les Républicains) in 2017 is inseparable from the election of Emmanuel Macron that same year. The case itself concerns suspicions of fictitious employment concerning Penelope Fillon, François Fillon’s wife. Again,  regardless of the case’s verdict veracity or severity of the sentencing—for which this article is not questioning—it is the surprising timing of the affair which has raised eyebrows. The case in fact surfaced right in the middle of the presidential campaign while the alleged facts had dated back years ago, back to periods before 2013.

The consequences were major on the result of the presidential elections of 2017, with a media-legal surge which became politically fatal to François Fillon’s campaign. Following the affair, voting intentions for François Fillon in the 2017 presidential election decreased by five to six points, reaching the same polling results as Emmanuel Macron, though the latter exceeded him. On February 16, 2017, the newspaper Le Monde published a survey placing François Fillon third behind Marine Le Pen (26%) and Emmanuel Macron (23%).

Ultimately, by the first round of the presidential election of April 23, 2017, François Fillon came in third place with 20.01% of the votes, behind both his contenders—placing the affair as possibly the deciding factor to his presidential bid.

François Fillon himself, alongside several jurists, spoke of a real “institutional coup d’état”. Many gray areas have surrounded the affair, not only the timing. According to certain jurists, the legal action had violated the Constitutional Code, including the principle of separation of powers. Moreover, unlike the case of Marine Le Pen mentioned previously, Fillon’s investigation was initiated by the National Financial Prosecutor’s Office, and not by the assembly which would have normally concerned itself with such issues. What is more, a flagrant violation of the secrecy of the investigation and instruction was also highlighted by legal experts, characterized by numerous leaks to the press.

The Trump case in the United States

Briefly crossing the Atlantic, delving into a case reminiscent in certain aspects of those above-mentioned we find ourselves in an American presidential election marred by unprecedented levels of judicial litigation accused by both sides of the political spectrum. The now-new President of the United States, Donal Trump, was notably taken to court during his campaign by two proceedings concerning federal offenses as well as by two proceedings for offenses committed at the federal-state level.

Contrasting this with the Joe Biden affair, in which special prosecutor Robert Hur decided not to recommend prosecutions against the now former president in January 2024 (a few months before the presidential elections) for the withholding of confidential documents—one of the charges for which Trump was being prosecuted for during the same time period. During the 2020 presidential campaign, Justice Secretary William Barr ordered prosecutors and his department staff to prevent the release of information regarding the investigation into Hunter Biden (son of Joe Biden) involved in several cases (money laundering, tax evasion, illegal carrying of weapons, etc) in order not to influence the American presidential election. In other words, it seems that in similar circumstances, one and the other candidate had benefited from partisan judicial treatment, along with an undeniably different media treatment which may have meaningfully affected the electoral results.

American Supreme Court: guarantor of the constitution or political instrument?

Although all eyes are rightly and generally focused on the results of the American presidential elections and to a lesser extent those concerning Congress, there is however another determining issue, that of the American Supreme Court. Placed at the top of the American judicial hierarchy, this court’s role is to ensure that the American Constitution is respected when a judicial decision is rendered by another court or when one of the States of the Union promulgates a law. The latter issues decisions without appeal and based on its interpretation of the American Constitution. This last point is particularly important.

Charles Evans Hughes, then-former governor of New York, declared: “We are governed by a Constitution, but the Constitution is what the judges say it is…”. Indeed, what characterizes the interpretation of any fact is very often the own subjectivity of the person to whom this responsibility falls. However, if the spirit in which the Supreme Court was established aimed above all to protect respect for the constitution, the method of appointing the judges who sit there makes the decisions taken by this court sometimes eminently political.

It is Article II, section 2, paragraph 2, commonly referred to as the “Appointment clause” which gives the President of the United States the power to appoint members of the Supreme Court who serve there for life with the exception of resignation. Consequently, it is difficult to believe that this choice is made in complete neutrality and, unsurprisingly, Republican presidents systematically appoint rather conservative judges and vice-versa with Democratic presidents. As such, the current composition of the Supreme Court is 6 judges out of 9 appointed by Republican presidents (George W. Bush, George H.W. Bush and Donald Trump) for 3 appointed by Democratic presidents (Barack Obama and Joe Biden).

Thus, unsurprisingly, most decisions taken by this court in its current composition are arguably rather conservative. The latest emblematic case in this direction was that of the repeal of Roe v. Wade, which serves as the case of jurisprudence on the right to abortion in the United States. The repeal of this ruling gives federal states the right to choose whether or not voluntary termination of pregnancy is legal and under what conditions. By proceeding as such, while the Supreme Court decided simply to not prohibit the right to abortion, the judges necessarily know that de facto a certain number of states openly hostile to this right will prohibit or limit it.

This indeed corresponds to a certain extent to the federal concept of the United States of America, where American federal law on a national scale and the law particular to each federated state coexist. It is also true that leaving more prerogatives to elected governors allows for more coherent democratic expression, to the extent that political or religious expectations and orientations are extremely different from one state to another. On the other hand, it remains difficult to believe that the Supreme Court’s decision was based purely on elements linked to the application of the Constitution and not to the fact that a conservative majority sits there at the moment.

In addition, the method of nomination poses another problem. By being appointed for life by presidents elected for only 4 years, renewable once, the positions of these judges can become anachronistic in relation to the evolution of public opinion over several decades and which may no longer have much to do with what it was at the time of their appointment.

Meloni and the United Kingdom blocked by the courts on their immigration management projects

Back in Europe, let us now look at two cases that, whilst taking place in two different countries, have similar substance. This time it is not a question of the potential interference of justice in the electoral process, but of preventing democratically elected governments from implementing programs for which they were elected.

The Giorgia Meloni case in Italy

The first case concerns the policy of outsourcing asylum requests in Italy to Albania, put forth by Italy’s Giorgia Meloni. The project, being an integral part of Meloni’s program that partly explained her election victory, was almost literally nipped in the bud before even seeing the light of day. Thus, while Italy signed an agreement with Tirana at the end of 2023 providing for the creation of two centers in Albania, from where migrants rescued in the Mediterranean will be able to apply for asylum, an Italian court invalidated on Friday, October 18, 2024, the detention in Albanian centers of the first asylum seekers sent.

The court decision based its verdict on a recent ruling by the European Court of Justice regarding the consideration of countries of origin deemed “safe” by host countries. However, it turns out that the list of third countries considered safe and the criteria for defining whether a country is part of the list are not the same for Italy and for the European Union. The EU considers in particular that only countries whose entire territory is safe, including for all minorities, can be considered safe. Italy considers certain countries safe based on the general national context of that country. Italy has recently updated its own list of countries considered safe by decree. By promulgating the list by decree, the Italian government considers that the political and institutional weight will become more difficult to block, in particular via an appeal procedure that could be issued by a court, whether Italian or European. 

The decision of an Italian court of justice to rely on European law is not a new issue, due to the existing ambiguity concerning the supposed primacy of European law over the national law of member countries. An issue of the same type has recently pitted Poland against the European Union, opposing on the one hand the defenders of the primacy of European law contained in the treaties and those affirming that this primacy of European law was not structural, but only interpretative. Coming back to the case of Italy, the case has since been referred to the Court of Justice of the European Union (ECHR) for a final decision, expected on February 25, but which in view of the precedents of the said court in similar cases, leaves little room for suspense.

Subsequently, Italian Interior Minister Matteo Piantedosi announced that the government would appeal, with the Italian government continuing its transfers to Albania despite the risk of a new legal setback. This case highlights two important parameters. Beyond the judicial question or any politicization of justice, there is therefore also the problem of the national sovereignty of EU member states.

The British Supreme Court declares illegal the plan to deport illegal immigrants present on British soil to Rwanda

A similar case both in substance and form was observed in Great Britain where the plan to transfer asylum seekers from the United Kingdom to Rwanda was blocked after, on June 29, 2023, the Court of Appeal invalidated the plan, believing that Rwanda was not “a safe third country” for asylum seekers. Rishi Sunak’s government files an appeal with the Supreme Court of England and Wales, which confirms the appeal decision in November 2023. Since then, the new British Prime Minister Keir Starmer has announced that the project was definitively abandoned.

Thus, if the Labor government was now elected on a more flexible line regarding immigration, the fact remains that successive Conservative governments which had been elected on an opposite program would never be able to put it in place despite their electoral victory. Notably, the abandonment of the project is in reality not linked to the victory of Keir Starmer and Labor, but to court decisions. So, even in the event of a landslide victory for the Conservatives in the last elections, well, it would have negligibly changed  anything in terms of the abandonment of this project. Judges have extraordinary power over the political process and that places an extraordinary responsibility on judges who must rise to the occasion. A transparent and peaceful democratic process depends largely on the confidence of citizens in the transparency of their political representatives, but also, for the reasons mentioned, that of justice.

Conclusion

Thus, as we have just seen through a certain number of examples, what to a certain extent could be seen as simple current affairs within Western democracies actually raise fundamental questions. To the extent that in certain cases the popular will manifested by the electorate of a candidate or the fact that this elected candidate’s agenda can be blocked by a handful of unelected people, can it be said that two of the pillars of the democracy—that is the separation of powers (legislative, executive, judicial) and the sovereignty of the people—clash irreconcilably?  

Perhaps a new approach to the judicial system to reduce the gap between popular will and the necessary temperance of justice will one day have to be put on the table. There already exist other structures of judicial systems which may be avenues to explore. This is particularly the case of Mexico, which has recently carried out a constitutional reform allowing the election of judges by direct universal suffrage. This reform is certainly not without risk, in particular due to possible cases of corruption not of judges, but directly of voters.

A similar path was taken in Bolivia in 2011 and allows us to draw an initial assessment which is rather mixed, if not negative. However, it should be noted that we are talking about countries that do not have the political stability of most Western democracies, and the relative failure of this method of appointment can be attributed to a multitude of other factors inherent to other internal problems of this type of country. Finally, it seems more necessary than ever to clarify the vagueness reigning around European law which, by not taking into account the interests and specificities of each member state, will only accentuate an already great mistrust towards it.